Bret Stephens: Just confirm Kavanaugh (Commentary)

Posted Jul 13, 2018

Monsignor John Enzler, left, President and CEO of Catholic Charities, Archdiocese of Washington, talks with Supreme Court nominee Brett Kavanaugh after serving meals to the homeless as he volunteers with Catholic Charities, Wednesday, July 11, 2018 in Washington. (AP Photo/Alex Brandon)

With apologies to "Animal House's" Otter, Brett Kavanaugh's nomination to the Supreme Court is not the time "a really futile and stupid gesture be done on somebody's part."

Then again, Otter's frat brother Bluto did go on to become a U.S. senator, so maybe it makes sense. I refer to the decision of Senate Democrats to wage a tooth-and-nail battle to oppose Kavanaugh, an effort that is likely doomed to fail and equally likely to hurt Democratic chances in the fall. Who knew Chuck Schumer was so content with his job as Senate minority leader?

Let's count the ways in which the Democrats aren't helping themselves.

Kavanaugh will almost certainly be confirmed. Democrats who had pinned their hopes on flipping Sens. Susan Collins and Lisa Murkowski probably aren't going to get their wish, since both Republican moderates voted to confirm Kavanaugh to his current judgeship in 2006 and have since spoken approvingly of his nomination. Rand Paul can also be counted on to feign political independence, but he usually falls into line.

Of course it's possible Kavanaugh will make a bad public impression, like Robert Bork. Or maybe there will be a #MeToo revelation, like Clarence Thomas. Or maybe Democrats will figure out a way to kick a vote past the midterms. In which case, Democrats can seize their chances. For now, however, the first question Democrats ought to ask themselves is whether they really have political capital to waste on a losing battle.

Fierce opposition to Kavanaugh hurts Democrats. This was already going to be a difficult year for Senate Democrats, who are defending 10 seats in states won by Trump. Everyone knows that North Dakota's Heidi Heitkamp, West Virginia's Joe Manchin and Indiana's Joe Donnelly are vulnerable, which is why they voted to confirm Neil Gorsuch last year. Florida's Bill Nelson is struggling, too, as is Missouri's Claire McCaskill.

So please explain the logic of convincing Democratic voters in these states that the Kavanaugh nomination is the moral battle of our time -- and then putting their senators to the choice of looking like political sellouts if they vote for Kavanaugh, or moral cowards if they don't?

Liberals always cry wolf. In 1987, the National Organization for Women declared that Anthony Kennedy would be a "disaster" for the rights of women and minorities. Yet the libertarian-minded Kennedy went on to defend abortion rights in Planned Parenthood v. Casey (1992) and cast the decisive vote for marriage equality in Obergefell v. Hodges (2015). In 1990, Judith Lichtman of the Women's Legal Defense Fund warned in a New York Times op-ed that "Judge Souter's confirmation must be denied" based on his evasiveness during his confirmation hearings. Over time, Souter emerged as a reliably liberal vote on the court. Similar fury greeted John Roberts' 2005 nomination -- until his vote to preserve Obamacare remade him into a consensus-oriented pragmatist.

A plurality of Americans already want Kavanaugh confirmed, according to a Rasmussen poll. The numbers will likely improve once Americans get a closer look at this temperate, intelligent, decidedly non-scary nominee. And Democrats will again play to type as mindless obstructionists and one-note alarmists -- the same overheated opposition that, as the Times' Jeremy Peters reported last month, only hardens support for Trump.

What about rallying the base? Democrats should have learned in 2016 that what counts in American politics is location, not turnout. Virtue signaling in Park Slope isn't going to win a Senate election in Nevada. Nor will it convince Alabama Democrat Doug Jones to vote against Kavanaugh.

As it is, how much more rallying does the base need? The Trump administration provides its opponents, and even its friends, with daily extravaganzas of legitimate outrage, moral and political: breaking up migrant families; escalating needless trade wars; alienating historic allies while kowtowing to pathological dictators -- and that's just the last few weeks. Instead of knee-jerk opposition to Kavanaugh, Democrats might focus on fighting battles that must be fought and which they can win.

Kavanaugh deserves confirmation. There was a time when Supreme Court nominees were confirmed on the basis of merit, not ideology. For Democrats, that ended in 1987 with the Borking of Bork. For Republicans, it ended with the mistreatment of Merrick Garland.

Yet there's still such a thing as doing the right thing, even in politics. Justices such as Roberts and Gorsuch deserved their seats on the court for the same reason Ginsburg and Breyer did -- they are competent, conscientious judges, irrespective of how they vote. They give the court its democratic legitimacy, and its leeway for meaningful independence, by representing a spectrum of views. Democrats would help themselves, and the country, by returning to the old standard and refusing to let Kavanaugh's confirmation become the political event of the season.

Alternatively, Democrats can proffer another futile and stupid gesture as Trump champions his manifestly qualified nominee. If someone would like to explain the political wisdom in that, I'm all ears.